Five-year bans from entering U.S. under legal challenge

A provision that lets American border guards arbitrarily bar Canadians from entering the U.S. for at least five years is under fire from B.C. business leaders who see it as a major threat to cross-border enterprise.

The B.C. Chamber of Commerce has joined a lawsuit filed in the U.S. that aims to quash the so-called “expedited removal” process.

Typically, B.C. residents barred from entry under the provision have been deemed by U.S. border staff to have lied under questioning about the reason for their visit.

“It seems like it’s pretty arbitrary in its application,” said Bellingham immigration lawyer Greg Boos, who has filed a submission in a U.S. court on behalf of the B.C. chamber, the Whatcom County chamber and other stakeholders.

Expedited removal consists of an automatic ban on entering the U.S. for either five years or for life and there’s no avenue for appeal to the courts.

Boos said B.C. businesses with key staffers who service equipment they’ve sold to American clients have been barred, causing chaos for the affected firms.

“If it was applied to the CEO of a B.C. company doing business in the United States, it would be disastrous for that company,” he said.

Boos said bans on B.C. residents through the provision have been sporadic so far, but there have been signs its use will grow.

Some “hard core” border guards use it more than others, he said, and one in Blaine boasted about denying more Canadians entry than any other staffer.

“This has a chilling effect on cross-border trade and commerce,” Boos said, adding it’s open to abuse and discrimination.

He’s confident the legal challenge should succeed because the U.S. enabling regulations indicate Canadian non-immigrants aren’t to be subjected to expedited removal.

The only problem, he said, is persuading the U.S. ninth circuit court of appeals that it has the jurisdiction to rule that border staff are overstepping their powers.

Oral arguments were held last week but a ruling isn’t expected for six to nine months.

Blaine lawyer Len Saunders said he’s seen perhaps one in 100 bans reversed by U.S. Customs and Border Protection (CBP) staff at the post where it was imposed, but beyond that recourse is virtually impossible.

“The CBP officer is judge, jury and hangman,” Saunders said.

He’s seen a case where a B.C. resident with copies of his resume in his vehicle was barred after guards decided he was looking for work rather than vacationing.

“Usually it happens because they think the person is coming down to do something other than what they claim.”

Saunders recounts another case involving a retired Abbotsford church minister who was regularly crossing the border to go to Lynden to cover for the local minister for three weeks.

The first two times he merely said he was visiting the church when asked his reason for coming to the U.S.

The third time he said he was covering for the colleague.

Although the minister was being paid only a small per diem and didn’t consider himself to be working in the U.S., CBP officers decided he’d lied to them the previous two trips and banned him for five years.

“If they can give an expedited removal to a minister from Abbotsford, they can give one to anyone,” Saunders said.

A higher profile victim was Chad Rook, a Vancouver actor who has appeared in TV series such as “Supernatural.”

He was slapped with a five-year ban in January after a nine-hour interrogation at the Peace Arch border crossing.

Rook was on his way to Los Angeles to meet entertainment industry contacts and to visit friends and vacation. He initially neglected to mention the business side of his trip and was accused of changing his story and trying to illegally work in the U.S.

“This draconian regime flies in the face of open borders and Canada’s long-standing friendship and trading relationship with our neighbours to the south,” B.C. Chamber of Commerce president John Winter said. “These harsh border rules need to be fixed.”